State v. Watkins

• Citation: 102 So. 347,88 Fla. 392
• Parties: STATE ex rel. BUFORD, Atty. Gen. v. WATKINS, County Clerk.
• Decision Date: 28 April 1923
• Court: United States State Supreme Court of Florida

102 So. 347

88 Fla. 392

STATE ex rel. BUFORD, Atty. Gen. v. WATKINS, County Clerk.

Florida Supreme Court, Division A.

April 28, 1923

Rehearing Granted Jan. 22, 1924.

Peremptory Writ Awarded Dec. 5, 1924.

Original mandamus proceeding by the State, on relation of Rivers H Buford, Attorney General, against W. Roger Watkins, as Clerk of the Circuit Court of Hillsborough County.

On motion for peremptory writ.

Motion denied.

Whitfield and West, JJ., dissenting on original hearing. Brown, J dissenting on rehearing.

On Rehearing.

Syllabus by the Court

SYLLABUS

Regulation of state and county officers' fees, based on population of county, held unconstitutional. A classification, for the purpose of regulating the fees of officers of the state and county, based upon population, whereby the state and county officers in the more populous counties are given a greater portion of the fees collected by them than is given to such officers in other counties, is unconstitutional and void.

Writ issued when defense of unconstitutionality not sustained. Where a writ of mandamus is applied for, to compel a county official to render to the board of county commissioners a sworn statement showing in detail the expenses of his office fees, and commissions collected, and the gross and net income thereof, under the provisions of chapter 8497, Laws of 1921 and the amendments thereto, and the defense interposed is the alleged unconstitutionality of the act, and such act is not held to be unconstitutional, the writ of mandamus should issue.

COUNSEL Rivers Buford, Atty. Gen., and T. M. Shackleford, Jr., of Tampa, for relator.

James F. Glen, of Tampa, Evans & Mershon, of Miami, and O. O. McCollum, of Jacksonville, for respondent.

Carter & Youge, of Pensacola, and John T. G. Crawford, of Jacksonville, amici curiae.

OPINION

BROWNE, J.

The Attorney General applied for and obtained an alternative writ of mandamus directed to W. Roger Watkins, as clerk of the circuit court of Hillsborough county, Fla., to require him to comply with the provisions of chapter 8497, Laws of Florida, and render to the board of county commissioners of Hillsborough county, Fla., a sworn statement, showing in detail the expenses of his office, fees and commissions collected, and the gross and net income thereof, for the year ending December 31, 1922.

The return to the writ challenges the constitutionality of chapter 8497, Acts of 1921, and the matter is now before us on a motion for a peremptory writ.

In the case of State v. Shepard (decided August 14, 1922) 84 Fla. 206, 93 So. 667, of chapter 8497 it was held:

'That the gross and net amount of fees collected in 1921 by the clerk of the circuit court in one county of the state is largely in excess to those collected in the only county of the state having 100,000 or more population. * * * But the respondent is not within the classification based on population since he is an officer in a county of less than 100,000 population, and he cannot contest the validity of that classification when it does not invalidate the classification he is in.'

In the instant case the respondent is an officer in a county having over 100,000 population, and is therefore in a position to raise the question of the constitutionality of the second proviso of the act. which the respondent in the Shepard Case was not.

Assuming that section 1 of the act is valid down to the second proviso, which makes the objectionable classification, the question presents itself of the effect of the invalid portion upon the entire section.

The opinion in the Shepard Case, supra, intimated that this proviso was based upon an arbitrary and unreasonable classification.

In a separate concurring opinion the then Chief Justice said:

'I concur in the conclusion reached in this case, that chap. 8497, Acts of 1921, is constitutional and valid, but only if the proviso in relation to counties having 100,000 population or more, is eliminated.

'I regard that proviso as unconstitutional and invalid. All of the 'enumerated cases' in section 20, art. 3, of the Constitution, whereby the Legislature is prohibited from passing special or local laws, are of equal dignity.

'The Legislature cannot enact a valid law providing that 'the punishment for the crime of larceny shall be imprisonment not exceeding two years, or by fine not exceeding $1,000, or by both fine and imprisonment in all counties in the state; provided, that 'in counties having 100,000 population or more,' the punishment shall be by imprisonment not exceeding five years, or by a fine not exceeding $5,000, or by both fine and imprisonment.'

'Neither could the Legislature make a rule for 'changing venue of civil and criminal cases' for part of the state, and a different rule 'in counties of 100,000 population or over.'

'The same is true with regard to 'summoning and impaneling grand and petit juries,' where expediency and convenience might suggest a different rule for sparsely settled counties than in those more thickly populated.

'If a classification based upon population may be constitutionally applied in the matter of 'regulating the fees of officers of the state and county,' a similar classification would have to be sustained in an act making the punishment of crime vary according to population, in the several counties of the state, and likewise with regard to all the 'enumerated cases' in section 20 of article 3 of the Constitution. It follows that so much of section 1 of chapter 8497 as provides 'that in counties of one hundred thousand (100,000) population or over said officers shall receive from the net income the first five thousand ($5,000.00) dollars; ninety (90%) per cent. of the next two thousand $2,000.00) dollars; fifty (50%) per cent. of the next two thousand ($2,000.00) dollars; thirty (30%) per cent. of the next two thousand ($2,000.00) dollars; and ten (10%) per cent. of the rest and residue thereof: Provided, further that in no event shall such officers be entitled to more than seven thousand five hundred ($7,500.00) dollars per annum' is unconstitutional and void.'

In this concurring opinion, Mr. Justice BROWNE also gave it as his opinion that the proviso could be eliminated without destroying the purpose of the act. Upon further consideration, he has reached a different conclusion.

The proviso being unconstitutional, it becomes necessary for us to determine what was the legislative purpose, as shown by the language of the entire section 1, and it is quite palpable therefrom that the purpose was to limit the compensation of county officials to $6,000 per year, except in counties having 100,000 or more, and as to them the compensation should be limited to $7,500 per year. If we eliminate the second and third provisos of section 1, that purpose is undoubtedly destroyed, and there will be substituted for the legislative will a different plan, namely, that the compensation of all county officers shall be limited to $6,000 per year. That such was not the intention of the Legislature is clear when the act is read in connection with the fact known to every one in Florida, that there are at least two counties in the state, the population of each of which exceeds 100,000, and with the rapid growth of our population other counties will soon come within the 100,000 classification.

The proviso being unconstitutional, and the majority of the court being satisfied that the manifest purpose of the Legislature would not be carried out, if the salary of officials in the counties of over 100,000 population should be limited to $6,000 a year, the entire section must fall.

The remaining sections of the act cannot become effective when section 1 is eliminated as there is nothing then in the act to which they refer, or upon which they can operate.

The entire act therefore must fall, and the motion for a peremptory writ is denied.

TAYLOR, C.J., and ELLIS, J., concur.

WHITFIELD and WEST, JJ., dissent.

DISSENTING

WHITFIELD J. (dissenting).

Section 1, c. 8497, Acts of 1921, is as follows:

'Each county official whose compensation for his official duties is paid wholly or partly by fees or commission or by both by fees and commissions shall receive as his yearly compensation for his official services, from the whole or a part of the fees and commissions so collected, the following sum only All the net income from such office not to exceed five thousand ($5,000.00) dollars; sixth (60%) per cent. of the next one thousand ($1,000.00) dollars, or any fraction thereof; forth (40%) per cent. of the next two thousand ($2,000.00) dollars, or any fraction thereof; twenty (20%) per cent. of the next two thousand ($2,000.00) dollars, or any fraction thereof, and ten (10%) per cent. of the rest and residue thereof; Provided however, that should said method of computation yield a net income of more than six thousand ($6,000.00) dollars per year, the excess over and above six thousand ($6,000.00) dollars net per year shall be paid over as herein provided and no such officer shall under the foregoing computation of remuneration receive as his net income from the moneys so collected by him more than six thousand ($6,000.00) dollars per year. Provided that in counties of one hundred thousand (100,000) population or over said officers shall receive from the net income the first five thousand ($5,000.00) dollars; ninety (90%) per cent. of the next one thousand ($1,000.00) dollars; fifty (50%) per cent. of the next two thousand ($2,000.00) dollars; thirty (30%) per cent. of the next two thousand ($2,000.00) dollars; and ten (10%) per cent. of the rest and residue thereof; Provided, further, that in no event shall such officers be entitled to more than seven thousand five...